Pennsylvania Railroad Company v. Ogier

Decision Date01 January 1860
Citation35 Pa. 60
PartiesPennsylvania Railroad Company versus Ogier.
CourtPennsylvania Supreme Court

W. Darlington, Cuyler, and Bell, for the plaintiff in error.— The principal question is, was there negligence on the part of Dr. Ogier, which contributed to the injury? And upon this point, there is no conflict of evidence. The question of negligence was, therefore, one of law for the court; there was nothing to submit to the jury: Spencer v. Railroad, 5 Barb. 338; Haring v. Railroad, 13 Id. 9; Darcomb v. Railroad, 27 Id. 227; Mackey v. Railroad, Id. 528; Brook v. Railroad, Id. 532; Reeves v. Railroad, 6 Casey 464; O'Brien v. Railroad, 6 Am. L. R. 361.

Undoubtedly, "much is left to the sound discretion of the jury," on the subject of damages; but the court should content themselves with laying down the proper rule, and telling the jury to regard it. After doing so, to say much is left to their sound discretion, is to tell them to do as they please.

J. J. Lewis and J. P. Wilson, for the defendant in error.— The case exhibits here a different aspect from what it did in the court below. There the main question was, whether a signal was sounded by the defendant's train, on its approach to the crossing of the Tun road. The verdict has found that no signal was sounded, and that fact is here to be considered as established.

The rights and duties of parties grow out of the circumstances in which they are placed: Pennsylvania Railroad Company v. Kilgore, 8 Casey 296. Negligence is the want of the care and caution which is usually observed, by a person of ordinary prudence, in similar circumstances: Reeves v. Railroad Company, 6 Casey 461; Myers v. Snyder, Brightly 489; Beatty v. Gilmore, 4 Harris 466. A person is not chargeable with neglect of his own safety, when he exposes himself to one danger, by trying to avoid another: Pennsylvania Railroad Company v. Aspell, 11 Harris 150; Erie v. Schwingle, 10 Id. 389.

The charge of the court on the measure of damages is taken from the opinion of this court in the Pennsylvania Railroad Company v. Zebe, 9 Casey 330, where it is said that "in making the estimate of the value of life, and the consequent damage by death, much is still left to the sound discretion of the jury."

The opinion of the court was delivered by THOMPSON, J.

There may, undoubtedly, be cases in which the only facts proven may present so clearly and incontestably features of negligence in regard to the specific ground of complaint, that it may become the duty of the court to pronounce it such as a matter of law. Such, for instance, as the rapid running of a train of cars around curves, at crossing places, over the railroad, without notice of any kind: Reeves v. The Delaware, Lackawanna and Western Railroad Company, 6 Casey 454. So in the exit of a passenger from the cars on an opposite side from that of the platform provided for his safe and convenient egress, under no controlling necessity for doing so: The Pennsylvania Railroad Company v. Zebe and wife, 9 Casey 318, and many other cases that might be imagined. But in cases of controverted facts, the existence or non-existence of which may fairly be presumed to affect the mind, in a given exigency, there the question of the character of the acts, whether negligent or otherwise, is necessarily for the jury. Such, we think, was the case here. The theory that the deceased might have seen 623 feet along the railroad in the direction in which the train was approaching, from a point at which he might have stopped the progress of his horse and escaped danger, but did not see it until within 174 feet of him, if considered abstractly, and entirely unshaken by any or every other consideration, would have presented a strong case of negligence; but even then it would scarcely have justified a court in saying there was negligence as a matter of law, when but 17 seconds were allowed for action to the party in danger.

But there were other considerations to be taken into account here. If there was no notice by blowing the whistle, a thing required to be done before reaching the point, and usually done, a traveller accustomed to expect this, would not only not be so likely to look out for danger, or be in such a preparedness to avoid it, as he otherwise might have been, and this without any culpable negligence on his part. For, if by the negligence or omission of those in charge of the train his vigilance was allayed, they are not at liberty to impute the consequence of their acts to his...

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